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Decisions – Court of Appeals – March 10, 2015

Chester King Burnham v. Joseph A. Kwentus and Karen Richardson – easement by necessity – Burnham’s property was landlocked. for 50 years had used his neighbor’s private road which the neighbors allowed as a courtesy. Those neighbors sold their property and the new neighbors denied Burnham use of their private road and asked him to use another road which Burnham thought was less passable. Burnham sued the new neighbors claiming he had a prescriptive easement. The chancellor disagreed but found that Burnham had an easement by necessity. The COA affirms. “Mississippi’s property laws are clear that, if use is based on permission, express or implied, no matter how long, it can never ripen into the hostile use required for a prescriptive easement.”

Curtis Magee v. City of Mendenhall – parking ticket win! – Mendenhall has an ordinance prohibiting parking for more than 4 hours in certain parts of downtown Mendenhall. Magee got a ticket and was fined $100 by the municipal court on MArch 27, 2013. Magee timely filed a notice of appeal on April 11, 2013 (within 30 days). The circuit judge understood that Magee was challenging the constitutionality of the ordinance. The judge refused to find it unconstitutional but allowed Megee to make a record. During the trial, though, Mendenhall offered no proof that Magee violated the ordinance. The circuit court fined Magee $250. On appeal to the COA, the court reverses.

Our review of the circuit-court proceedings reflects that Magee called several witnesses to make a record for appeal. However, in its prosecution of this case in the circuit court’s trial de novo, Mendenhall neither called any witnesses of its own nor presented any evidence to show that Magee actually violated Ordinance 256. As a result, we find that Mendenhall failed to meet its burden of proof for a trial de novo to show beyond a reasonable doubt that Magee violated the parking ordinance. Because Mendenhall failed to satisfy its burden of proof in the circuit court’s trial de novo, insufficient evidence existed upon which the circuit court could base its judgment affirming Magee’s municipal-court conviction. We therefore reverse and render Magee’s conviction for violating Ordinance 256.

David Vincent v. Joan Rickman – child support contempt/ attorneys fees – David and Joan divorced in 2007. They had three children. In 2012, Joan filed a petition for contempt alleging David failed to make timely child-support payments. David filed a counter-motion and asserted the defense of the “Doctrine of Unclean Hands,” claiming that Joan was in contempt for failing to comply with the trial court’s order to provide David with health-insurance cards within thirty days. The trial court found David in contempt and ordered him to pay attorney’s fees of $1,999.50. Joan filed another petition for citation of contempt claiming David was again delinquent on paying child support. The parties agreed that David was in arrears and gave David more time to catch up and agreed that he pay $1500 in attorneys fees for the filing of the latest motion for contempt. When the matter was finally tried, David’s child-support payments were current. David was found in contempt, though, for failing to pay in full all the attorneys fees. He ordered David to be incarcerated until he paid the outstanding attorney’s fees. When David paid $3,125.78 towards the judgment against him,he was released. David filed a motion for reconsideration. This was denied. Joan asked for additional attorneys fees of $1000 to respond to the motion. The trial court granted her the extra $1000. David appeals. The COA affirms.

Marty Ford v. Miss. Dept of Human Services – child support – In 2011, Amy Crawford named Marty C. Ford as the natural father of her eight-year-old son. DNA testing confirmed this. MDHS filed a joint petition and although Ford was served he did not show for the hearing. The Court, noting that Ford was required to pay support for four other children, ordered him to pay $400 in monthly child support based on an adjusted gross monthly income of $2,900. He also ordered 29 months of retroactive child support in the amount of $11,600, for which Ford was to pay $80 per month until paid in full. Ford filed a petition to modify claiming that he had “suffered an involuntary reduction” and, thus, had impaired his ability to make the required payments. At a hearing, Ford testified he was currently self-employed doing automobile body work, and his income varied between $0 and $2,100 per month. He admitted he had had a job with the Tupelo Public School District earning approximately $2,900 per month but left it because it caused him to suffer stress-related high blood pressure. Crawford agreed to a lower amount of $288 a month but testified that the amount Ford wanted it lowered to – $150 – was insufficient. The chancellor modified the judgment reducing the monthly child-support award to $288, and providing Ford with a credit of $1,400 for voluntary payments he had made to Crawford to be applied against the retroactive child-support award of $11,600. The COA affirms.

Check Into Cash v. City of Jackson – zoning – CICM has a payday advance business at Metro Junction Shopping Center, in Jackson. In 2011, the Mississippi Department of Banking and Consumer Finance issued CICM a license to offer title loans
loans at this location. In 2006, the City of Jackson amended its zoning ordinance. Under the amended ordinance, CICM was located in a C-3 General Commercial District. Before the amendment, title-pledge-loan businesses were not permitted.in C-3 districts but could be under a use permit. CICM applied for a use permit which was denied. The COA reverses. “We find that there is no relevant evidence in the record that would support the City Council’s finding and the denial of the use permit. The fact that some in the community believe that an additional title-loan business in the area was not needed was an argument in
favor of limiting competition in the area. But the Mississippi Supreme Court has long held that “the purpose of zoning is not to limit or restrict competition, and a zoning ordinance cannot be used to control competition.”

Steve Muirhead v. Lula Cogan –destruction of easement/punitive damages – Siblings inherited land from their parents near Vicksburg. This included the private portion of Muirhead Road. In 1979, the siblings divided the land via a partition deed. The deed reserved a twenty-foot-wide easement over the parcels of land that were given to Marvin Muirhead and Lula. The easement allowed for the extension of Muirhead Road so that Marvin, Lula, and Steve could access their property. Steve purchased Marvin’s portion of the land. When Steve’s son Ronnie started to sue the easement, he purchased gravel and placed it on the lower portion of the easement. In 2005, Steve asked Lula to contribute $3,000 toward the maintenance of the easement. Lula consulted a construction worker who measured the gravel and concluded no work was needed. In 2006, Ronnie built a new road and he and Steve used that road. A new culvert directed water away from the newly built road and onto the easement. Also in 2006, most of the gravel was removed from the easement and it became impassable via automobile. Lula field suit against Steve alleging he destroyed the easement. The chancellor awarded Lula $26,500 in compensatory damages, $10,000 in punitive damages and $11,119.35 in attorney’s fees. The COA affirms the compensatory damages but reverses and remands the punitive damages and attorneys fees. “We reverse and remand for an evidentiary hearing wherein the chancery court must determine by clear and convincing evidence whether Steve’s actions were willful, wanton, and malicious. If, on remand, the chancery court finds that punitive damages are warranted, then the chancery court must consider the factors enumerated in section 11-1-65(f)(ii) in determining the amount of punitive damages to be awarded.”

Cindy Petty v. Baptist Memorial Health Services – intentional infliction of emotional distress – Cindy was employed for sixteen years by BMH-GT as a registered nurse the labor-and-delivery department. In February of 2010, she successfully performed an internal bimanual uterine massage on a patient who was experiencing severe hemorrhaging. She was fired on the basis that “there was no physician’s order [instructing Cindy] to perform [the] procedure [and the] procedure [was] not within The report alleged that Cindy had performed the procedure that, according to BMH was outside of her scope of practice as a registered nurse.” ” BMH-GT reported Cindy to the Mississippi Board of Nursing. Following a hearing, the Board concluded that “it is within the scope of [an] appropriately trained registered nurse to perform [an] internal bimanual uterine massage per an institutional policy addressing the emergency management of postpartum hemorrhag[ing].” The Board took no disciplinary action against Cindy. Cindy sued BMHS for In her complaint, Cindy alleged: (1) intentional infliction of emotional distress, (2) negligent infliction of emotional distress, (3) tortious interference, and (4) defamation. The court granted summary judgment for BMHS. The Court finds that Cindy waived the claims of tortious interference and defamation for not arguing them on appeal. The COA reverses on the intentional infliction of emotional distress claim. BMHs reported her to the Board after firing her. The employee-employer relationship had ended and BMHS presented no evidence that it had an affirmative duty to report Cindy to the Board. A:so, the record reveals that other nurses, against whom BMH-GT took no disciplinary action, had performed the very procedure that was the basis of the report made against Cindy to the Board AND that Cindy had been taught the procedure by the patient’s treating physician.

James Swilley v. State – Swilley was convicted of burglary of a dwelling and grand larceny and was sentenced to serve 7 and 10 years as an habitual consecutively. The Office of Indigent Appeals filed a Lindsey brief. Swilley filed a brief alleging a defective indictment and ineffective assistance. The COA affirms.

James Kimbrough v. Fowler’s Pressure Washing– worker’s comp versus maritime employment – Kimbrough was injured in 2010 while working for Fowler’s Pressure Washing LLC, a subcontractor of Patriot Environmental Services Inc. He was pressure washing oil from vessels when he slipped on loose gravel and injured his knee. He eventually had to have a total knee replacement. During physical therapy, he suffered an injury to his lumbar spine. Kimbrough received benefits from AmFed Casualty Insurance Company, Fowler’s workers’ compensation coverage carrier. In 2011, Kimbrough filed a claim for benefits under the Longshore and Harbor Workers’ Compensation Act (LHWCA) against Patriot. AmFed suspended benefits. In December 2011, Kimbrough filed a petition to controvert with the Commission. The ALJ found that the Mississippi Workers’ Compensation Act did not apply to maritime employment and that Fowler’s did not assume coverage of Kimbrough by virtue of having paid for a state workers’ compensation insurance policy. The Commission affirmed as does the COA.